Nguyen (Migration)

Nguyen (Migration) [2024] AATA 3334 (2 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Dr Quoc Cong Nguyen
Ms Thi Thao Nguyen
Miss Thuy Duong Nguyen
Mr Quoc Thang Nguyen
CASE NUMBER:  2209885
HOME AFFAIRS REFERENCE(S):          BCC2021/1405389
MEMBER:Amanda Mendes Da Costa
DATE:2 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled Work Regional (Provisional) (Class PS) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 491 visa:
·cl 491.216 of Schedule 2 to the Regulations.

DECISION:The Tribunal considers that the applications of the second named, third named and fourth named applicants should be reconsidered on the basis that they meet the secondary requirements for the grant of Skilled Work Regional (Provisional) (Class PS) visas.

Statement made on 2 September 2024 at 10.56am

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 - Skilled Work Regional (Provisional) – occupation of Economist – Doctor of Philosophy degree – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 93, 94, 96, 350
Migration Regulations 1994, Schedule 2, cl 491.216; Schedule 6D; rr 1.15, 2.26, 2.27
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 July 2022 to refuse to grant the applicants visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a points-based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.
The first named applicant (the applicant) was invited to apply for the visa on 25 June 2021 and applied for the visa on 13 July 2021. The criteria for the grant of a Subclass 491 - Skilled Work Regional (Provisional) visa is set out in Part 491 - Skilled Work Regional (Provisional) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 491.216.
Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 26 August 2024 to give evidence and present arguments. At the commencement of the hearing the applicant advised the Tribunal that the second named, third named and fourth named applicants (his wife and children) did not wish to participate in the hearing. The Tribunal considered that it was appropriate in the circumstances of this case to proceed in their absence.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both the applicants and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies the points test criterion which requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act:
·is not less than the score stated in the invitation to apply for the visa and
·is not less than the ‘qualifying score.’
Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (reg 2.26AC). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s 94 of the Act), which is set by the Minister from time to time under s 96(2). The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment and apply whichever is more favourable to the applicant (ss 93 and 350 of the Act).
Some elements of the points test relate to the nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the relevant instrument as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (reg 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 19/051. In the present case, the applicant nominated the occupation of Economist.
Does the applicant have the qualifying score applying the law in force at the time of the delegate’s assessment?
Part 6D.1 – Age qualifications
Points are available under this Part if the applicant was aged between 18 and 44 years at the time of invitation to apply for the visa.
At the time of invitation, the applicant was aged 39 years. Therefore, the applicant is entitled to 25 points under this part.
Part 6D.2 – English language qualifications
Points are available under this Part on the basis of the applicant’s level of English language proficiency at the time of invitation to apply for the visa.
The applicant provided the Department with a Pearson test of English (PTE) score report[1] dated 129 November 2020, with an overall score of 39 and the following individual scores:
·Listening         28
·Reading          39
·Speaking        42
·Writing            42
[1] Score Report Code: 0c526dQYFR.
As this is less than 65, the Tribunal finds that he failed to demonstrate an English level which attracts points under this qualification.
Therefore, the applicant is entitled to no points under this part.
Part 6D.3 – Overseas employment experience qualifications
Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for a period totalling at least 36, 60, or 96 months in the 10 years immediately before that time.
The applicant told the Tribunal that he was had been employed as an Economist by the Agency for Regional Industry and Trade, Ministry of Industry and Trade, Vietnam during the period 2014 to 2018. This employment was undertaken whilst he was undertaking his PhD studies at the University of Wollongong. The applicant explained that he was able to work and study simultaneously because he was working online, and the subject of his PhD thesis was similar to the wok he was undertaken for the Agency for Regional Industry and Trade. This focused on improving the productivity of manufacturing in small and medium size enterprises. The fact that his studies were closely aligned with his professional work enabled him to manage both commitments effectively.
In support of his employment , the applicant provided bank statements showing salary payment records; superannuation contribution documents; a letter from his manager at the Agency for Regional Industry and Trade (dated 10 June 2022) detailing the tasks undertaken performed by the applicant during his employment; documentation outlining the standard timeframes for the tasks undertaken by him; a reference letter from his manager; and certificates of recognition for his contribution and achievements during his employment.
The Tribunal notes that in his reference letter dated 10 June 2022, Mr Tang Thi Hoa, Chief of the Agency for Regional Industry and Trade confirms that the applicant was employed in the implementation of various economic projects for the Agency between 2013 and 2019.
The Tribunal further notes that the applicant has provided it with successful skills assessments (dated 15 April 2019 and 29 December 2022) by VETASSESS for the occupation of Economist. In the assessment dated 15 April 2019 VETASSESS states that the following claims of skilled employment by the applicant are assessed as employment of at least 20 hours per week which is at the appropriate skill level and closely related to the nominated occupation of Economist (ANZSCO Code 224311):
·From 12 April 2009 to 30 July 2009, Cadre/Official, Peoples’ Committee of Dien Chow District, Vietnam.
·From 1 August 2009 to 8 March 2019, Official and Deputy Head of Division of Planning, Agency for Regional Industry and Trade, Ministry of Industry and Trade, Vietnam.
In the assessment dated 29 December 2022, VETASSESS states that the following claims of skilled employment by the applicant are assessed as employment of at least 20 hours per week which is at the appropriate skill level and closely related to the nominated occupation of Economist (ANZSC Code 224311):
·From 23 December 2012 to 1 March 2020, Deputy Head of Office of Planning, Agency for Regional Industry and Trade, Ministry of Industry and Trade, Vietnam.
·From 1 March 2020 to 23 December 2022, Officer/Researcher, Institute from Human Resources and Training and Development, Vietnam.
Based on the evidence before it, the Tribunal is satisfied that at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the nominated skilled occupation of Economist or a closely related occupation for a period totalling at least 96 months in the 10 years immediately before that time.
Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 15 points under this part.
Part 6D.4 – Australian employment qualifications
Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated occupation or a closely related skilled occupation for a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
The applicant has made no claims and provided no evidence that he was employed in a skilled occupation in Australia for at least 12 months in the 10 years immediately before his invitation to apply for the visa.
Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.
Part 6D.5 - Aggregating points for employment experience qualifications
Under this part, if an applicant has qualifications mentioned in both Parts 6D.3 and 6D.4 and the combined number of points that would be awarded under those Parts is more than 20 points, 20 points must be given under this Part for the qualifications and no points are to be given under Part 6D.3 or 6D.4.
The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 20. As this is not more than 20 points, the applicant is entitled to no points under this part.
Part 6D.6 – Australian professional year qualifications
Five points are available under this part if, at the time of invitation to apply for the visa, the applicant had completed a professional year (that is, a course specified in an instrument) in Australia in the nominated occupation or a closely related skilled occupation for a period totalling at least 12 months in the immediately preceding 48 months.
The applicant has made no claims and provided no evidence of completing a professional year in Australia.
Therefore, the applicant is entitled to no points under this part.
Part 6D.7 – Educational qualifications
An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard. In determining whether an overseas qualification is of a ‘recognised standard’ (items 6D71(b), 6D72(b)), regard must be had to the matters set out in reg 2.26AC(5) which include recognition of the qualification by the relevant assessing authority, recognition of the qualification by a specified body, duration of the study and any other relevant matter.
The Tribunal is satisfied that the applicant has met the requirements for the award of a doctorate by an Australian educational institution, being a Doctor of Philosophy degree, conferred on the applicant by the University of Wollongong.
Therefore, the applicant is entitled to 20 points under this part.
Part 6D.7A – Specialist educational qualifications
Points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a specialist educational qualification, as defined in reg 2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a master’s degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.
The applicant has made no claims and provided no evidence that he had at the time of invitation to apply for the visa, a specialist educational qualification specified in Part 6D.7A.
Therefore, the applicant is entitled to no points under this part.
Part 6D.8 – Australian study qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement, as defined in reg 1.15F of the Regulations. To meet the Australian study requirement, the applicant must satisfy the Minister that they have completed 1 or more degrees, diplomas, or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study and completed them in a total of at least 16 calendar months as a result of a total of at least 2 academic years study.
The Tribunal is satisfied that at the time of invitation, the applicant had completed a doctoral degree by an Australian educational institution.
The Tribunal is further satisfied that this qualification was as a result of a course that was:
·a registered course (as defined in reg 1.03);
·completed in a total of at least 16 calendar months;
·as a result of at least 2 academic years study;
·for which all instruction was conducted in English; and
·whilst holding a visa authorising study.
As the Australian study requirement had been met at the time of invitation, the applicant is entitled to 5 points under this part.
Part 6D.9 – Credentialled community language qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.
The applicant has made no claims and provided no evidence that he was the holder of a qualification in a particular language awarded or accredited by a body specified by the Minister at the specified standard at the time of invitation to apply for the visa.
Therefore, the applicant is entitled to no points under this part.
Part 6D.10 – Study in designated regional area qualification
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement (as defined in reg 1.15F), the location of the campus(es) at which the study was undertaken and the location in which the applicant lived while undertaking the course of study were in a designated regional area. Distance education does not qualify as study for these purposes.
The Tribunal notes that the applicant completed his studies for his Doctorate at the Wollongong campus of the University of Wollongong, New South Wales.
The applicant’s oral evidence at the hearing tother with bank statements, lease agreements and utility bills satisfy that whilst undertaking his studies between March 2014 and August 2018, the applicant was living in Fairy Meadow, 2519, New South Wales.
Based on the above findings, the Tribunal is satisfied that the applicant met the ‘Australian Study Requirement’ as defined in reg 1.15F and reg 2.27D; and the study was undertaken at a campus in a designated regional area[2].
[2] LIN 20/292.
The Tribunal is further satisfied that the applicant’s address whilst undertaking the study was in a designated regional area and that none of the studies undertaken by the applicant were distance education.
Therefore, the applicant is entitled to 5 points under this part.
Part 6D.11 – Partner qualifications
Ten points may be awarded under this Part if the applicant does not have a spouse or de facto partner, or the applicant has a spouse or de facto partner who is an Australian citizen or permanent resident. Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is an applicant for the same subclass and is not an Australian citizen or permanent resident and at the time the applicant was invited to apply for the visa, the spouse or de facto partner had competent English. Ten points may be awarded under this Part if the applicant has a spouse or de facto partner who is also an applicant for the same visa subclass and is not an Australian citizen or permanent resident and at the time the applicant was invited to apply for the visa, the spouse or de facto partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English.
The applicant has made no claims and provided no evidence that he has met the partner qualification.
Therefore, the applicant is entitled to no points under this part.
Part 6D.12 – State or Territory nomination qualifications
Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.
Part 6D.13 – Designated regional area nomination or sponsorship qualifications
Points are available under this Part for applicants who were invited to apply for a Subclass 491 – Skilled Work Regional (Provisional) visa, where the relevant agency has not withdrawn the nomination or if the applicant was sponsored by a family member, the Minister has accepted the sponsorship. The applicant in this case was invited to apply for a Subclass 491 visa.
As the applicant was invited to apply for a Skilled Work Regional (Provisional) (Subclass 491) visa and the nomination of the Government of New South Wales has not been withdrawn, the applicant is entitled to 15 points under this part.
Conclusion on points
Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6D is:
6D.1 - Age  25 points
6D.2 - English language  0 points
6D.3 - Overseas employment experience  15 points
6D.4 - Australian employment experience  0 points
6D.5 - Aggregated employment  0 points
6D.6 - Australian professional year  0 points
6D.7 - Educational  20 points
6D.7A – Specialist educational  0 points
6D.8 - Australian study  5 points
6D.9 - Credentialled community language  0 points
6D.10 - Study in designated regional area qualification        5 points
6D.11 - Partner qualifications  0 points
6D.12 - State or Territory nomination  -
6D.13 - Designated regional area nomination or sponsorship qualifications 15 points
Total points  85 points

The applicant’s assessed score under the points system is therefore 85 points.
At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument LIN 19/210. The applicant has therefore achieved the qualifying score to pass the points test.
Has the applicant achieved the score stated in the invitation to apply for the visa?
It is also a requirement that the applicant’s score is not less than the score stated in the invitation to apply for the visa. The written invitation given to the applicant stated a score of 85 points. Based on the points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.
For the above reasons, the applicant is entitled to a maximum of 85 points under the points test. As the applicant’s score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, the applicant satisfies cl 491.216, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.
Based on its findings regarding the applicant, the Tribunal considers that the second named, third named and fourth named applicants meet the secondary requirements for the grant of Skilled Work Regional (Provisional) (Class PS) visas.
DECISION
The Tribunal remits the applications for Skilled Work Regional (Provisional) (Class PS) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 491 visa:
·cl 491.216 of Schedule 2 to the Regulations.
The Tribunal considers that the applications of the second named, third named and fourth named applicants should be reconsidered on the basis they meet the secondary requirements for the grant of Skilled Work Regional (Provisional) (Class PS) visas.
Amanda Mendes Da Costa
Member

[2024] AATA 3334

2 September 2024

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